On Point

State v. Jacob B. Jones, 2008 WI App 154, PFR filed 10/24/08
For Jones: David R. Karpe

Issue/Holding: Entry of a probationer’s residence to effectuate a probation/parole search was reasonable:

¶22      We reject Jones’s argument. As the circuit court found, Trimble was told by Detective Pertzborn that Jones was sexually involved with a fourteen-year-old girl and that Pertzborn had knowledge of nude photographs of Jones and love notes from Jones to the girl. Trimble testified that when she went to Jones’s home, she understood there were probably nude photographs of the girl in his possession. Further, Jones admitted that he had a marijuana pipe in the room that he was trying to hide. Jones does not dispute these facts, and we are satisfied that the court’s factual findings are not clearly erroneous.

¶23      The circuit court’s findings of historical fact demonstrate Trimble’s compliance with the provisions of Wis. Admin. Code § DOC 328.21(7) (Dec. 2006). First, she had received information from a reliable informant. In Griffin, 131 Wis. 2d at 62, the Wisconsin Supreme Court concluded that a tip from a police officer that the probationer had or may have had contraband constituted the requisite reasonable grounds to perform a probation search. Thus, this factor alone was sufficient to constitute reasonable grounds for the search. In addition, Trimble’s observations of Jones’s demeanor prior to the search, coupled with his admission that a marijuana pipe was in his room contributed additional reasonable grounds for the ensuing probation search. Based on the circuit court’s findings, we conclude that the search was based on reasonable grounds.

State v. Jacob B. Jones, 2008 WI App 154, PFR filed 10/24/08
For Jones: David R. Karpe

Issue/Holding:

¶24      Wisconsin Admin. Code § DOC 328.21(3)(f) (Dec. 2006) provides that probation or parole agents “may not forcibly enter a locked premises to search it if the client whose living quarters or property it is is not present.” Jones argues that the search of his bedroom was not reasonable because use of a locksmith constituted a forced entry in violation of § DOC 328.21(3)(f), and he asserts that this violation compels suppression of the evidence discovered during the search.

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¶27      The Appendix states with regard to Wis. Admin. Code § DOC 328.21(3)(f) that “[t]he agent may enter in any way that does not do damage to the property.” Wis. Admin. Code § DOC 328 app. note DOC 328.21 (Dec. 2006). It is clear from the Appendix that the intent of § DOC 328.21(3)(f) is to prohibit agents from causing damage to a locked premises in order gain entry. Jones does not argue that the door to his bedroom was damaged as a result of the locksmith’s entry, and we conclude that the use of the locksmith to gain entry was not forcible in violation of § DOC 328.21(3)(f).

State v. Ramon Lopez Arias, 2008 WI 84, on Certification
For Arias: Lora B. Cerone, SPD, Madison

Issue/Holding: A dog sniff is no more a “search” under the Wisconsin than the U.S. Constitution, at least with respect to vehicles:

¶22      We are unwilling to undertake such a departure here. First, we note that there is no constitutionally protected interest in possessing contraband under the United States Constitution, United States v. Jacobsen, 466 U.S. 109, 123 (1984), nor is there a constitutionally protected interest in possessing contraband under the Wisconsin Constitution. Moreover, the occupant of a vehicle has no reasonable expectation of privacy in the air space surrounding a vehicle that he is occupying in a public place. State v. Garcia, 195 Wis.  2d 68, 74-75, 535 N.W.2d 124 (Ct. App. 1995).

¶23      Second, a dog sniff is much less intrusive than activities that have been held to be searches. Place, 462 U.S. at 707. When a dog sniffs around the perimeter of a vehicle, the occupant of the vehicle is not subjected to the embarrassing disclosure or inconvenience that a search often entails. Id. The dog sniff reveals only the presence or absence of narcotics, a contraband item. Id. Indeed, a dog sniff is unique as a means of detection because, as the Supreme Court has observed, a dog sniff gives limited information that is relevant only to contraband for which there is no constitutional protection. Id.

State v. Willie B. Cole, 2008 WI App 178
For Cole: Scott A. Szabrowicz

Issue/Holding: The exclusionary rule applies only to government action, not private searches, ¶12. If the State asserts that the action was private in nature the burden shifts to the defendant to prove by governmental involvement, preponderance of evidence, id.

State v. Willie B. Cole, 2008 WI App 178
For Cole: Scott A. Szabrowicz

Issue: Whether the action of a police officer in opening a letter misaddressed to the officer’s residence from a House of Correction inmate was private and therefore outside fourth amendment scrutiny.

Holding:

¶13   There appears to be no Wisconsin case addressing the issue when an off-duty law enforcement officer acts in a private capacity rather than as a government agent for purposes of the Fourth Amendment. However, there appears to be general agreement in other jurisdictions that have considered the issue that “[government] involvement [in a search] is not measured by the primary occupation of the actor, but by the capacity in which he acts at the time in question”; therefore, an off-duty officer acting in a private capacity in making a search does not implicate the Fourth Amendment. State v. Pearson, 514 P.2d 884, 886 (Or. Ct. App. 1973) (emphasis in original).  AccordUnited States v. Ginglen, 467 F.3d 1071, 1074-76 (7th Cir. 2006); United States v. Couch 378 F. Supp. 2d 50, 58 (N.D.N.Y 2005); State v. Walker, 459 N.W.2d 527, 533 (Neb. 1990); State v. Castillo, 697 P.2d 1219, 1221 (Idaho Ct. App. 1985); People v. Luetkemeyer, 393 N.E.2d 117, 120 (Ill. App. Ct. 1979); State v. Woods, 790 S.W.2d 253, 257 (Mo. Ct. App. 1990); State v. Andrews 637 A.2d 787, 790-91 (Conn. App. Ct. 1994); People v. Wolder, 84 Cal. Rptr. 788, 793 (Cal. Ct. App. 1970). We agree with this conclusion. We therefore examine the totality of the circumstances, see Payano-Roman, 290 Wis. 2d 380, ¶21, to determine whether Detective Kostopulos was acting in her private capacity as a citizen or in her official capacity as a detective for the sheriff’s department when she opened Cole’s letter.

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¶19      Considering the totality of the circumstances, we conclude that Detective Kostopulos was acting in her private capacity, not her official capacity, when she opened Cole’s letter. The activity she was engaged in when she opened Cole’s letter—opening mail that had been delivered to her home—was that of a private citizen.  Even given our assumption that she saw the front of the envelope before she opened it and so knew it was not intended for her, she did not know Willie Cole or Charnaye Cole or have reason to suspect that she might discover criminal activity by opening the letter. There is no evidence she was aware of any pending case or investigation relating to Cole when she opened the letter.

That the detective waited two days before turning over the letter doesn’t affect the court’s conclusion; for that matter, whatever she did subsequent to opening the envelope is seemingly irrelevant to whether her “act [of] simply opening and reading the letter” was in her private capacity, ¶20.The letter, by the way, was written by an HOC inmate awaiting trial on a battery, addressed to his sister and telling her to prevent the victim (his wife) from testifying against him. Correct name but as you can see wrong address. What might the odds have been that the address belonged to a detective?

State v. Michelle R. Popenhagen, 2008 WI 54, reversing 2007 WI App 16
For Popenhagen: James B. Connell

Issue: Whether the person whose documents were produced by a bank pursuant to subpoena has standing to seek suppression of the documents.

Holding:

¶24 A person has standing to seek judicial intervention when that person has “a personal stake in the outcome” ^[12] and is “directly affected by the issues in controversy.” [13] Under Wisconsin law, standing “should not be construed narrowly or restrictively,” but rather should be construed broadly in favor of those seeking access to the courts. ^[14]

¶25 The defendant meets the test for standing. In requiring a showing of probable cause and a court order, Wis. Stat. § 968.135 protects the interests of persons whose documents are sought in addition to protecting the interests of the person on whom a subpoena is served. The statute prevents unwarranted fishing expeditions.

Just to avoid any confusion: the court is not discussing standing in the fourth amendment sense of whether your own valid privacy interests have been invaded. In other words, despite language generously conferring standing, this holding doesn’t expand fourth amendment rights. (For that matter, the court takes pains, e.g., ¶5, to say that the decision is based purely on the statute, and that constitutional issues are left for another day.) Taking this one step farther: standing, as might be imagined, is similarly defined for purposes of appellate procedure, e.g., Ford Motor Credit Co. v. Mills, 142 Wis.2d 215, 217-18, 418 N.W.2d 14 (Ct. App. 1987) (“A person may not appeal from a judgment unless he or she is aggrieved by it. … A person is aggrieved if the judgment bears directly and injuriously upon his or her interests; the person must be adversely affected in some appreciable manner.”). Point is, standing for purposes of litigating a claim, whether trial or appeal, is “construed broadly in favor of those seeking access to the courts.”

State v. Ellen T. Straehler, 2008 WI App 14
For Straehler: Daniel P. Fay

Issue: Whether suppression is a remedy for violation of health care privacy laws (HIPAA; § 146.82).

Holding¹:

¶10      Straehler’s argument does not carry for a number of reasons. First, Straehler ignores the fact that HIPAA is limited in its scope and applicability. Investigating authorities, i.e., police officers, are not among the “covered entities” expressly subject to HIPPA. …

¶11      Notably, there is judicial agreement that the legislature did not intend HIPAA to apply to noncovered entities. …

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¶13      Second, even if Bernotas was somehow bound by HIPAA, which we have established an officer is not, HIPAA does not provide for suppression of the evidence as a remedy for a HIPAA violation. Suppression is warranted only when evidence has been obtained in violation of a defendant’s constitutional rights or if a statute specifically provides for suppression as a remedy. …

Holding²:

¶15      The plain language of Wis. Stat. § 146.82 states that it applies to patient health care records: “All patient health care records shall remain confidential. Patient health care records may be released only to the persons designated in this section or to other persons with the informed consent of the patient or of a person authorized by the patient.” Sec. 146.82(1). Patient health care records are defined as “all records related to the health of a patient prepared by or under the supervision of a health care provider.” See Wis. Stat. § 146.81(4).

¶16      In Thompson, we examined Wis. Stat. § 146.82 and held that it does not reach beyond protection of health care records. Thompson, 222 Wis. 2d at 188. Thompson moved for suppression of evidence seized by police while he was being treated by hospital staff. Id. at 181.

…

¶19      On appeal, Thompson argued that under Wis. Stat. § 146.82, the police should not have been allowed into the area where he was being treated. Thompson, 222 Wis. 2d at 184. We rejected this argument and held that, by its terms, § 146.82 “applies only to records.” Thompson, 222 Wis. 2d at 188.

¶20      Hagerman’s verbal statements based upon her observations are no more protected by Wis. Stat. § 146.82 than the medical procedures at issue in Thompson. Accordingly, under Thompson, there is no evidence of a violation of § 146.82 because there is no claim or evidence that Hagerman disclosed health records. ^[9]

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 ^[9] Whether Hagerman disclosed information that ultimately ended up in Straehler’s patient health care records cannot be determined from the record. Regardless, Hagerman did not disclose the records themselves.